PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 June 1999                   
	DOCKET NUMBER:   AR1999023584

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Thomas B. Redfern III		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that he be entitled to a Regular Army length of service retirement.

3.  The applicant states that he spent 20 years and 9 days in the military.  It is unfair for him not to receive a retirement especially since he was not granted severance pay as promised.

4.  The applicant’s military records show that he was initially inducted into the Army on 16 March 1965.  After a break in service, he reenlisted on 22 January 1974.  He was promoted to Staff Sergeant, E-6 on 3 August 1982.  He was assigned to Fort Lee, VA on 20 May 1989 as an instructor/writer.  He was selected for promotion to Sergeant First Class, E-7 and placed on the 22 February 1990 promotion list.

5.  On 13 December 1989, the applicant received a general officer letter of reprimand for engaging in an improper personal or social relationship with an AIT (advanced individual training) student.  He rebutted this letter, stating the student had gone to his home with his 20-year old son.  While he should have asserted himself more, he was not involved in any improper activities.  The commanding general made the decision to file the letter in the applicant’s Official Military Personnel File.  The applicant was apparently removed from his duties as an instructor at this time and performed duties as a “yardman” (ensuring the grass was cut, leaves raked, etc).

6.  On 2 July 1990 the command allowed him to extend his enlistment to reach retirement eligibility.  The applicant was removed from the E-7 promotion list on 30 November 1990.  His bar to reenlistment was removed effective 30 November 1990 by the installation commander.  On 20 February 1991 the installation commander recommended the applicant be considered by a standby advisory board for promotion to E-7.

7.  On 19 September 1991, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for wrongful use of cocaine sometime between 4 and 5 July 1991 and between 2 and 5 August 1991.  His punishment was to be reduced to pay grade E-5, to forfeit $724.00 pay for one month and to perform extra duty for 45 days.  The command chose not to pursue Chapter 14 (misconduct) elimination action and instead entered into an agreement with the applicant wherein he would accept this Article 15 in lieu of court-martial.  He would be retained on active duty until retirement (eligible 30 April 1992), contingent upon his successfully completing the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

8.  The applicant’s command referred him to ADAPCP where he entered both the outpatient and the in-patient treatment programs.  He was removed from the in-patient treatment plan on 27 November 1991.  On 9 December 1991, the applicant tested positive for cocaine on a urinalysis test.

9.  On 6 January 1992, the applicant completed a retirement physical examination.  On 23 January 1992, he completed a mental status evaluation for the purpose of involuntary separation.  The evaluation noted that he was mentally competent to understand and participate in board proceedings, but that his behavior (a depressed mood over his pending separation and other serious occurrences) indicated some psychiatric problems that required further intervention.  On 11 February 1992, a psychiatric evaluation diagnosed the applicant as cocaine dependent – severe and with an adjustment disorder and depressed mood.

10.  On 20 February 1992, the command initiated discharge action under the provisions of Army Regulation 635-200, Chapter 9 for drug abuse rehabilitation failure, noting that his positive urinalysis test for cocaine on 9 December 1991 violated the Article 15 agreement.

11.  On 21 February 1992, the applicant acknowledged notification of the discharge action, requested that an administrative board consider his case, requested personal appearance before such a board, and requested representing counsel.  He did not submit a statement in his own behalf.  His approved retirement orders were revoked by the Department.

12.  On 13 March 1992, the board convened.  The applicant’s one-time senior rater testified that as a soldier, the applicant was competent and reliable.  Because of his letter of reprimand, he (the senior rater) could not keep him on the platform (as an instructor) for professional reasons, although as a personal matter he would have done so.  The applicant’s one-time supervisor testified that “…did a great job. He came to work on time although he had a lot of appointments.”  During his testimony, the applicant admitted his mistakes but stated he now lived with his sister and had a good support system.  The board found the applicant to be a drug abuse rehabilitative failure and recommended his separation with an honorable discharge.

13.  On 25 March 1992, the commanding general forwarded the case to Headquarters, Department of the Army (HQDA), stating that “A soldier with a record of drug abuse is not conducive to a proper military environment nor deserving of the benefits associated with the privilege of retirement from the U. S. Army”.  He recommended separation with an honorable discharge.

14.  On 21 April 1992, the applicant attained 20-years of active service.  On 22 April 1992, HQDA approved the applicant’s discharge under the provisions of Chapter 9, Army Regulation 635-200 as a drug abuse rehabilitative failure with an honorable discharge.  HQDA stated that separation pay was not authorized since the applicant had completed 20 years active federal service.

15.  On 29 April 1992, the applicant was discharged, with an honorable discharge, in pay grade E-5 under the provisions of Army Regulation 635-200, Chapter 9, drug abuse rehabilitation failure.  He had completed 20 years and 9 days of active service and had no lost time.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 provides for the discharge of members based on alcohol or other drug abuse such as the illegal, wrongful or improper use of any controlled substance, when the soldier in enrolled in ADAPCP and the commander, in consultation with the rehabilitation team, determines that there is a lack of potential for continued Army service and further rehabilitation efforts are not practical, rendering the soldier a rehabilitative failure.  An honorable discharge is mandated in any case in which the government initially introduces into the final discharge process limited use evidence as defined by Army Regulation 600-85.

17.  Chapter 12 of Army Regulation 635-200 states that a soldier of the Regular Army who has completed 20, but less than 30 years of active federal service may, at the discretion of the Secretary of the Army, be retired at his or her request.

18.  Army Regulation 600-85 prescribes policies and procedures needed to implement, operate and evaluate the ADAPCP.  In pertinent part, it states that the objective of the Limited Use Policy is to facilitate the identification of alcohol and drug abusers through self-referral and the treatment and rehabilitation of those abusers who demonstrate the potential for rehabilitation and retention.  Limited use prohibits the use of some types of evidence against a soldier in actions under the Uniform Code of Military Justice or on the issue of characterization of service in separation proceedings.  One type of evidence is mandatory urine or alcohol breath test results taken to determine a soldier’s fitness for duty and the need for counseling, rehabilitation or other medical treatment or in conjunction with a soldier’s participation in ADAPCP.

19.  The Department of Defense Financial Management Regulation states that effective 20 June 1991, separation pay is authorized to service members who are involuntarily separated from active duty and who meet several conditions.  Half separation pay is authorized to members who have completed at least 6 years but less than 20 years active service; whose separation is characterized as “honorable" or "general;" and who are being involuntarily separated under one of several conditions, to include drug abuse rehabilitation failure.

CONCLUSIONS:

1.  The Board notes that no government error occurred in this case.  It is at the Secretary of the Army’s discretion that a soldier’s request for a 20-year retirement may or may not be approved. 

2.  However, the Board does believe that an injustice did occur.  The applicant was a drug abuse rehabilitative failure.  He was separated under the provisions of Army Regulation 635-200, Chapter 9 for such failure.  If the chain of command had more speedily processed his separation, HQDA could have received the case in time to approve his separation before he reached 20 years of service.  If HQDA had been able to do so, the applicant would have been entitled to half separation pay.

3.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by paying the applicant half separation pay as an exception to policy.

BOARD VOTE:  

__RVO___  __KAN__  __TBR__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999023584	
SUFFIX		
RECON		
DATE BOARDED	1999023584	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19920429	
DISCHARGE AUTHORITY	635-200, CH 9	
DISCHARGE REASON	A66.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	136.02	
2.	128.08	
3.		
4.		
5.		
6.